State v. Byas

[Cite as State v. Byas, 

.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                             No. 110157
                 v.                              :

DEONTAY BYAS,                                    :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: VACATED AND REMANDED
                 RELEASED AND JOURNALIZED: November 4, 2021


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-19-639419-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and James S. Gallagher, Assistant Prosecuting
                 Attorney, for appellee.

                 Milton A. Kramer Law Clinic Center, Case Western
                 Reserve University School of Law, Andrew S. Pollis and
                 Joseph Shell, Supervising Attorneys, Caroline Ford, Nadia
                 Haile, and David Codispoti, Certified Legal Interns, for
                 appellant.


FRANK D. CELEBREZZE, JR., P.J.:

                Defendant-appellant Deonte Byas brings this appeal challenging his

convictions for drug trafficking, drug possession, and possessing criminal tools.
Byas argues that the trial court erred in coercing an involuntary no-contest plea and

that the trial court failed to comply with Crim.R. 11(C)(2). After a thorough review

of the record and law, this court vacates Byas’s plea and sentence, and remands the

matter for further proceedings consistent with this opinion.

                         I. Factual and Procedural History

              On April 22, 2019, Cleveland police officers were patrolling Lorain

Avenue for prostitution and drug-related activity. Officers observed a female enter

a vehicle in the area they were patrolling. The vehicle was also involved in multiple

suspected drug transactions. As a result, the officers initiated a traffic stop.

              Byas was driving the vehicle that the officers pulled over. The female

passenger was in the back seat, and she informed the officers that Byas threw a scale

and a bag of heroin into the back seat. Officers also recovered a bag containing

cocaine in the vehicle’s center console. Byas was arrested for his involvement in the

drug-related activity.

              In Cuyahoga C.P. No. CR-19-639419-A (hereinafter “CR-19-639419” or

“new case”), Byas was charged in a five-count indictment on June 24, 2019, with

(1) drug trafficking (heroin), (2) drug possession (heroin), (3) drug trafficking

(cocaine), (4) drug possession (cocaine), and (5) possessing criminal tools. All five

counts contained forfeiture specifications.

              Byas was arraigned on September 27, 2019. He pled not guilty to the

indictment.
             The parties appeared in court on December 3, 2019, for a scheduled

pretrial hearing in the new case. During the December 3, 2019 hearing, the trial

court, not the prosecution, offered a “resolution” or “a plea” to Byas under which

Byas would receive an aggregate two-year prison sentence for the drug-related

charges in the new case and Byas’s community control violations,1 and the trial court

would waive fines, fees, and costs. (Tr. 3-4.) The trial court explained the possible

penalties that Byas was facing on the drug-related charges in the new case and the

penalties he would receive for violating community control.

             Byas inquired whether he would be eligible for judicial release if he

accepted the trial court’s resolution. The trial court advised Byas that he would not

be eligible for judicial release and that he would “do [his] time.”

             The trial court confirmed that Byas did not have any other questions.

Thereafter, the trial court asked Byas whether he wanted to “enter a plea on the new

case,” or whether he wanted “to go forward with the probation violation?” (Tr. 6.)

One of Byas’s defense attorneys requested an opportunity to confer with Byas, and

the trial court granted counsel’s request.

             Byas’s originally assigned attorney advised the trial court that Byas no

longer wanted him to represent him. Following this advisement, the trial court

stated:


      1 Although the trial court indicated that it placed Byas on community control in
2017 in four separate criminal cases, the trial court’s online docket reflects that Byas
allegedly violated community control in the following six criminal cases: (1) CR-17-
623241-A, (2) CR-17-620712-A, (3) CR-17-616251-A, (4) CR-17-615823-A, (5) CR-17-
615790-A, and (6) CR-17-615615-A.
      The Court: … Mr. Byas, let me explain something to you, and I have
      been considerate to your family. I’ve put more people on probation
      than any other judge in the State of Ohio.

      …

      The county jail is in crisis. I cannot permit people to just languish in
      the county jail. You either are going to resolve [the new case] this case
      today with two years, or you’re going to be, in two minutes, a probation
      violator, and you’re going to be sent down for three years on the first
      probation violation.

      This has nothing to do with [Byas’s originally assigned counsel]. And
      your disrespectful behavior to [originally assigned counsel] is offensive
      to my Court.

      I have treated you with decency and respect. For you to pretend that
      this is about [originally assigned counsel], who is one of the finest
      attorneys in Cuyahoga County, is disgraceful. It’s flipping the script
      and blaming somebody else. You’re not going to get a new attorney.
      But what you’re going to get is a consecutive period of incarceration if
      you’re probation violated, and then eventually convicted of the new
      case; okay?

      Do not come into my courtroom and attempt to blame your attorney or
      the system. It’s not about us. We’re here because of your behavior.

      Now, you have reached the very limit of my patience. I don’t have to
      have this conversation with you. I, right now, could sentence you to six
      years in a state penal institution and recuse myself from the new case,
      and send it to a different judge who could give you an additional six
      years.

(Tr. 8-9.)

              Immediately following the trial court’s statement, Byas stated, without

being prompted, “I plead guilty, your Honor.” (Emphasis added.) (Tr. 9.) However,

Byas appeared to opine a two- or three-year sentence was not warranted because he

did not “do anything violent to anyone, or hurt anyone[.]” (Tr. 10.)
               The trial court explained that Byas did not have to plead guilty and that

it did not make any difference to the court how Byas pled. Once again, the trial court

asked Byas how he wanted to proceed. Byas indicated, again, that he wanted to

“plead guilty.” (Emphasis added.) (Tr. 11.)

               At the trial court’s request, Byas’s originally assigned attorney orally

moved to withdraw from the representation during plea discussions. The trial court

permitted Byas to proceed with a new attorney that was representing Byas in

relation to a potential federal criminal matter.

               Byas’s new attorney confirmed that Byas “does want to take the two

years.” (Tr. 11.) However, counsel expressed concern about the potential charges

Byas may face in federal court. Following a discussion between the trial court and

Byas’s new attorney about the potential federal charges, the trial court inquired

again whether Byas wanted to enter a plea. Byas responded in the affirmative,

“[y]es, sir.” (Tr. 14.)

               The trial court confirmed with the prosecutor that the case file had not

“been marked,” such that Byas “can plead no contest to the indictment[.]”

(Emphasis added.) (Tr. 14.) Following these plea discussions between the trial

court, Byas, defense counsel, and the prosecutor, the trial court went “on the record”

and proceeded to formally take Byas’s plea.

               The trial court explained Byas’s constitutional rights to him. The trial

court advised Byas that he does not “have to plead guilty” and that he can try the

case to a jury.     (Emphasis added.)      (Tr. 17.)   The trial court explained the
constitutional rights Byas would have if he elected to try the case. The trial court

stated that Byas would be “waiving all the rights that I just said.” (Tr. 20.)

              The trial court explained that even if Byas was found not guilty on the

drug-related charges in the new case, he still faced the probation violations, which

only required a finding of probable cause rather than proof beyond a reasonable

doubt. The trial court advised Byas of the potential penalty, a prison term of two

years, that he would receive under the plea bargain proposed by the trial court. The

trial court advised Byas of the penalties he faced on the fourth- and fifth-degree

felonies charged in the new case.

              Following the court’s advisements, the court asked whether Byas had

any questions. Byas indicated that he did not. The trial court inquired whether Byas

would be entering the plea “freely, knowledgeably, and voluntarily[.]” (Tr. 21.) Byas

responded affirmatively. Other than what was placed on the record during the

December 3, 2019 hearing, Byas confirmed that no threats or promises had been

made to him. Byas confirmed that he was satisfied with the representation provided

by his attorney.

              Following the Crim.R. 11 colloquy, the trial court formally took Byas’s

plea: “How do you plead? You’re going to plead no contest. Remember that. How

do you plead to [Counts 1-5 in CR-19-639419]?” (Emphasis added.) (Tr. 22.) Byas

pled no contest to all five counts. (Tr. 22.)

              The prosecutor placed the factual basis for the charges to which Byas

pled no contest on the record. (Tr. 23.) Based on the prosecutor’s factual rendition,
the trial court found Byas guilty on all five counts. The trial court proceeded

immediately to sentencing.

                 The trial court imposed a prison term of two years: one year on

Count 1, one year on Count 2, one year on Count 3, one year on Count 4, and one

year on Count 5. The trial court ordered Counts 1 and 3 to run consecutively to one

another and concurrently with Counts 2, 4, and 5.              The trial court failed to

incorporate its consecutive-sentence findings into the December 9, 2019 sentencing

journal entry.

             On December 14, 2020, Byas, acting pro se, filed a notice of appeal and

a motion for a delayed appeal. Byas argued that he was never advised that he had a

right to appeal. This court granted Byas’s motion for delayed appeal on January 11,

2021, and appointed counsel to represent appellant in this appeal.

                 Byas assigns two errors for review:

      I. The trial court erred in coercing an involuntary plea.

      II. The trial court erred in accepting a plea without complying with
      Crim.R. 11(C)(2).

                                   II. Law and Analysis

                                    A. No Contest Plea

                 Byas’s assignments of error both pertain to his no contest plea.

                                         1. Coercion

                 In his first assignment of error, Byas argues that the trial court coerced

him into pleading no contest and that the plea was not entered voluntarily.

Specifically, Byas contends,
      [t]he trial judge coerced [Byas] into pleading no contest by creating the
      plea offer, pressuring [Byas] into accepting it immediately, and
      repeatedly interjecting comments reflecting bias against [Byas]. The
      bias was reflected in suggestions that the judge had already determined
      that [Byas] was guilty of both the new charges [in CR-19-639419] and
      probation violations. It was also reflected in comments about [Byas’s]
      demographic. These tactics resulted in an involuntary plea.

Appellant’s brief at 12.

              A defendant’s plea must be made knowingly, intelligently, and

voluntarily. State v. Engle, 

, 

 (1996). The

enforcement of a plea that is not made knowingly, voluntarily, and intelligently is

unconstitutional under both the United States and Ohio Constitutions. 

               In regards to a trial court’s participation in plea negotiations, the Ohio

Supreme Court has cautioned that “the judge’s position in the criminal justice

system presents a great potential for coerced guilty pleas and can easily compromise

the impartial position a trial judge should assume.” State v. Byrd, 

, 

 (1980). Although judicial participation is strongly

discouraged, it does not render a plea per se involuntary. Rather, the ultimate

inquiry is whether the trial court’s active conduct could have led the defendant to

believe he or she could not get a fair trial, including a fair sentence after trial, and

whether the judicial participation undermined the voluntariness of the plea. State

v. Sawyer, 

, 

, 

 (1st Dist.),

citing 

. In determining the voluntariness of a defendant’s plea, this court

considers the record in its entirety. State v. Jabbaar, 

, 

, ¶ 29 (8th Dist.).
                In the instant matter, Byas directs this court to State v. Heard, 2017-

Ohio-8310, 

 (8th Dist.),2 in which this court held that the defendant

did not enter a voluntary plea due to the trial judge’s coercion in the plea bargaining

process. The state argues that Heard is distinguishable because the trial court did

not force Byas to enter the plea, and the trial court specifically informed Byas that

he did not need to enter a plea.

                In Heard, the parties appeared in court for trial. Defense counsel

requested a continuance, explaining that the defendant “‘denied responsibility and

claimed his innocence to this since the time [counsel] met him,’ and that only half

an hour earlier, had told counsel he had been ‘covering up for the real shooter’ and

then given counsel the shooter’s name.” Id. at ¶ 4. The state objected to defense

counsel’s request for a continuance. The trial court opined that the new information

about the shooter was just a “ploy to get another continuance.” The trial court

informed the defendant that “if we don’t plead the case, we’re going to trial right

now.” Id. at ¶ 6.

                The trial court advised the defendant that the court would likely reject

any plea authorized by the state because “I think if you plead out to a case like this,

you need to do somewhere between 13 and 15 years in the state penal institution.”

Id. at ¶ 7. Furthermore, the trial court explained that if the defendant was convicted

at trial, he would receive “at least double, perhaps triple or more time[.]” Id. at ¶ 8.




      2   The appeal before this court and Heard involve the same trial judge.
                  The trial court offered his own plea deal to the defendant:

       What I’m suggesting is that you can plead no contest to the indictment
       and the court will sentence you. My only promise is I won’t
       consecutively sentence you. If you no contest the indictment, I will
       sentence you on a concurrent period of incarceration, but you’re
       looking at approximately 14 years in the state penal institution, 3 for
       the gun and 11 years on the underlying offense, and I would run the
       other time concurrent.

       If you take the case to trial and are convicted, you will do multiples of
       14 years, because if you’re convicted of these charges, that’s what you
       deserve. You deserve to spend what could be the rest of your life in the
       state penal institution.

Heard, 

, 

, at ¶ 9.

                  The trial court reminded the defendant that the matter would not be

continued and that trial would commence immediately if the defendant did not

enter a plea. Then, the trial court asked the defendant what he wanted to do.

                  The defendant asked whether he would be sentenced to more than ten

years if he pled guilty right then. The trial court stated that the defendant would be

sentenced to 14 years in prison. The defendant advised the trial court that he wanted

to go to trial.

                  After more discussion, the defendant asked the trial court whether, if

he pled guilty, he could see his daughter before going to prison. The trial court stated

that the defendant could not see his daughter.

                  The trial court asked the defendant again how he wanted to proceed.

The defendant responded, “I didn’t do it[.]” Heard, 

, 

,

at ¶ 13. The trial court asserted, “‘we’re either going to bring a jury up now and try

this case or you’re going to enter a plea.’ After a brief pause, the judge stated, ‘All
right, let’s bring the jury up.’ He then told [the defendant], ‘the jury is on its way. If

they walk into this room, my deal with you is off.’” 

 At this point, the defendant

stated he would take the deal.

               On appeal, the defendant argued that his plea was not made

voluntarily and that it was coerced by the trial judge. This court vacated the

defendant’s plea, concluding that it was not made voluntarily. This court explained

that (1) the defendant could have believed, based on the judge’s participation in the

plea process, that he could not get a fair trial or fair sentence after trial; (2) the judge

did more than actively participate in the plea process, the judge created and

presented the plea offer; (3) the state did not participate in the plea process at all,

and the plea offer came only from the judge; (4) although the judge told the

defendant he would get a fair trial, the judge’s comments clearly conveyed to the

defendant that the judge had already decided the defendant was guilty; and

(5) based on the judge’s comments about sentencing, the defendant could only have

concluded that he would not receive a fair sentence if he was convicted at trial. This

court also noted that the judge never gave the defendant time to adequately consider

the plea offer. Although the judge permitted the defendant to speak with his mother,

the defendant did not have an opportunity to confer with his attorney about the plea

offer. When the defendant briefly hesitated about how he wanted to proceed, the

judge told the defendant “the jury is on its way. If they walk into this room, my deal

with you is off.” Id. at ¶ 22. This court held that the trial court’s “ultimatum can

only be considered coercion.” Id.
              In the instant matter, after reviewing the record, we find that Byas’s

plea was not voluntarily entered. Here, like Heard, the plea offer came from the trial

court, not the prosecutor. The state concedes that the trial court “participated in

plea negotiation[.]” The record reflects that the state did not participate in the plea

process at all, except to confirm that the case file had not been marked, that Byas

could plead no contest to the indictment, and to indicate that the state had been

informed that Byas “intends to plead to the indictment[.]” (Tr. 14-15.)

              Here, the trial court offered an ultimatum to Byas with respect to the

new case — accept the trial court’s plea offer and resolve the new case today, or the

trial court would find him in violation of his community control and impose a prison

sentence of three or six years on the violations. Like Heard, 

, 

, the trial court’s ultimatum in this case can only be considered coercion.

              The alleged community control violations were entirely unrelated to

the drug-related charges in the new case. Byas appeared in court on December 3,

2019, for a pretrial hearing in the new case. During this pretrial hearing, the trial

court indicated that if Byas did not accept the court’s proposed resolution, it would

proceed immediately with a violation hearing and the imposition of sentence on the

alleged community control violations.

              Byas did not receive advanced notice that he would be facing a hearing

on the alleged community control violations. During oral arguments, the state

conceded that Byas was not given adequate notice prior to the December 3, 2019

hearing regarding the alleged community control violations. The trial court’s
coercion — accept the trial court’s plea in the new case or be sentenced to prison that

day on the unrelated violations — left Byas without a meaningful opportunity to

enter a knowing, intelligent, and voluntary plea in the new case.

               Byas could have believed that he would not have received a fair

probation violation hearing or a fair sentence on the violations if he did not accept

the trial court’s plea in the new case. Although the trial court suggested that it still

had to make a determination regarding whether there was probable cause that Byas

violated probation, the judge’s comments during plea discussions clearly conveyed

that the judge had already determined that Byas violated probation. The coercion

was compounded by the trial court’s assertion that “picking up the new case while

on probation to the Court is a, per se, probation violation,” and that “[e]ven if

somehow [Byas was found not guilty] on the new case, [he still is] a probation

violater on the other four cases.” (Tr. 5.) This statement is not accurate as a matter

of law.

      Courts have repeatedly determined that merely being charged with a
      crime is not sufficient to establish a probation violation. See, e.g.,
      Toledo v. Nova, 6th Dist. Lucas No. L-12-1229, 

; State
      v. Wagner, 

, 

, 

 (2d Dist.) (stating that the fact that a criminal charge was filed, by
      itself, is not sufficient to prove that the defendant committed the
      criminal act); State v. Craig, 

, 

 (1st Dist.1998) (stating that the mere fact of an arrest cannot
      constitute a violation of community control sanctions); State v.
      Kidwell, 10th Dist. Franklin No. 94APA06-883, 

 (Feb. 16, 1995) (revocation of probation predicated solely upon
      arrest, without additional evidence, is reversible error); State v. Moine,
      

, 

 (9th Dist.1991) (stating that
      an arrest does not constitute a violation of probation). Rather, the
      violation must be based on some inquiry into the facts supporting the
        charge, or some examination into the evidence underlying the
        offender’s arrest. 

, citing 

.

State v. Washington, 8th Dist. Cuyahoga Nos. 101157 and 101170, 

.

              The trial court advised Byas, “[y]ou either are going to resolve this case

[CR-19-639419] today with two years, or you’re going to be, in two minutes, a

probation violator, and you’re going to be sent down for three years on the first

probation violation.” (Emphasis added.) (Tr. 8.) This statement, made during plea

discussions in the new case, and before there was any factual inquiry into the new

charges or any evidence on the new charges was presented, indicated that the trial

court had already made up its mind regarding the probation violation. Accordingly,

any hearing on the alleged probation violations would be perfunctory at best. See

State v. Bailey, 8th Dist. Cuyahoga No. 103114, 

, citing Gagnon

v. Scarpelli, 

, 

, 

 (1973), and State v.

Miller, 

, 

 (1975), syllabus (because a trial court’s

judgment revoking community control can result in a serious loss of liberty, a

defendant-probationer “must be accorded due process at the revocation hearing”);

State v. Cox, 8th Dist. Cuyahoga No. 105932, 

, ¶ 15, citing State v.

Roberts, 

, 

, ¶ 18 (2d Dist.), and Gagnon (a defendant

is entitled to a preliminary hearing to determine whether probable cause exists to

believe that he or she violated probation, and due process requires a subsequent

revocation hearing to determine whether probation should, in fact, be revoked);
State v. Davis, 8th Dist. Cuyahoga No. 93959, 

, ¶ 26, citing 

 (“[Gagnon] required the trial court to provide [the defendant]: 1) written

notice of the claimed violations; 2) disclosure of evidence against him [or her];

3) opportunity to be heard and to present witnesses and documentary evidence; 4)

the right to confront and cross-examine adverse witnesses; 5) a ‘neutral and

detached’ hearing body; and 6) a written statement by the factfinder of the evidence

relied upon and reasons for revocation.”).

              The trial court again advised Byas that “I, right now, could sentence

you to six years in a state penal institution[.]” (Emphasis added.) (Tr. 9.) Although

Byas had an opportunity to confer with counsel during plea discussions, it is

questionable whether Byas had enough time to adequately consider the offer based

on the trial court’s statements about sending Byas to prison “in two minutes” and

“right now.” See Heard, 

, 

, at ¶ 20.

              Based on the trial court’s statements during plea discussions, Byas

could have believed that he would not have received a fair trial or a fair sentence

after trial in the new case. The trial court advised Byas, before any evidence was

presented on the charges in the new case, that “[e]ven if somehow you get a not

guilty on the new case, you still are a probation violater on the other four cases.”

(Tr. 5.) (Emphasis added.) The trial court’s statement implied that it was unlikely

that Byas would be found not guilty at trial on the new case.

              The trial court stated that if Byas was found to be in violation of

probation and also convicted in the new case, the sentences would be run
consecutively: “[W]hat you’re going to get is a consecutive period of incarceration if

you’re probation violated, and then eventually convicted of the new case; okay?”

(Tr. 9.) The trial court’s statements indicate that the judge had predetermined the

imposition of consecutive sentences without considering the consecutive-sentence

findings set forth in R.C. 2929.14(C)(4).

              For all of the foregoing reasons, we find that Byas’s plea was not made

voluntarily. See Heard, 

, 

, at ¶ 23. Byas’s plea is void

and must be vacated.

              Byas’s first assignment of error is sustained.

                            2. Effect of No Contest Plea

              In his second assignment of error, Byas argues that the trial court

erred in accepting his no contest plea because the trial court failed to comply with

Crim.R. 11(C)(2).

              Pursuant to Crim.R. 11(C)(2), a trial court shall not accept a guilty or

no contest plea in a felony case without first addressing the defendant personally

and doing all of the following:

      (a) Determining that the defendant is making the plea voluntarily, with
      understanding of the nature of the charges and of the maximum
      penalty involved ….

      (b) Informing the defendant of and determining that the defendant
      understands the effects of the plea …, and that the court, upon
      acceptance of the plea, may proceed with judgment and sentence.

      (c) Informing the defendant and determining that the defendant
      understands that by the plea the defendant is waiving the rights to jury
      trial, to confront witnesses against him or her, to have compulsory
      process for obtaining witnesses in the defendant’s favor, and to require
      the state to prove the defendant’s guilt beyond a reasonable doubt at a
      trial at which the defendant cannot be compelled to testify against
      himself or herself.

              The purpose of Crim.R. 11(C) is to convey specific information to a

defendant so that he or she can make a voluntary and intelligent decision regarding

whether to enter a guilty or no contest plea. State v. Schmick, 8th Dist. Cuyahoga

No. 95210, 

. This court reviews the issue of whether a trial court

accepted a plea in conformance with Crim.R. 11(C) under a de novo standard of

review. State v. Lunder, 8th Dist. Cuyahoga No. 101223, 

.

              “When a criminal defendant seeks to have his [or her] conviction

reversed on appeal, the traditional rule is that he [or she] must establish that an

error occurred in the trial-court proceedings and that he [or she] was prejudiced by

that error.” State v. Dangler, 

, 

, 

. “The test for prejudice is ‘whether the plea would have otherwise been made.’”

Id. at ¶ 16, quoting State v. Nero, 

, 

 (1990). A

defendant must establish prejudice “‘on the face of the record’” and not solely by

virtue of challenging the plea on appeal. Id. at ¶ 24, quoting Hayward v. Summa

Health Sys., 

, 

, 

.

              The traditional rule is subject to two limited exceptions. Id. at ¶ 14-16.

Under these two exceptions, a defendant is not required to demonstrate prejudice

(1) when a trial court fails to explain the constitutional rights set forth in Crim.R.

11(C)(2)(c) that a defendant waives by pleading guilty or no contest, and (2) when a

trial court has completely failed to comply with a portion of Crim.R. 11(C). Id. at
¶ 14-15, citing State v. Clark, 

, 

, 

; State v. Sarkozy, 

, 

, 

.

“Aside from these two exceptions, the traditional rule continues to apply: a

defendant is not entitled to have his [or her] plea vacated unless he [or she]

demonstrates he [or she] was prejudiced by a failure of the trial court to comply with

the provisions of Crim.R. 11(C).” 

, citing 

.

              This court no longer focuses on strict, substantial, or partial

compliance when reviewing a trial court’s compliance with Crim.R. 11. State v.

Kauffman, 

, 

 (8th Dist.). In Dangler, the Ohio

Supreme Court recently recognized that prior caselaw had “muddled [the] analysis

by suggesting different tiers of compliance with the rule” and “those formulations

have served only to unduly complicate what should be a fairly straightforward

inquiry.” Id. at ¶ 17. Dangler identified the following three questions to be

answered:

      (1) has the trial court complied with the relevant provision of the rule?
      (2) if the court has not complied fully with the rule, is the purported
      failure of a type that excuses a defendant from the burden of
      demonstrating prejudice? and (3) if a showing of prejudice is required,
      has the defendant met that burden?

Id.

              In the instant matter, in challenging the validity of his plea, Byas

contends that the trial court did not explain the effect of a no contest plea, as

required by Crim.R. 11(C)(2), and as a result, completely failed to comply with

Crim.R. 11(C)(2).
              Crim.R. 11(B)(2) governs the specific instruction that a trial court

must provide a defendant when informing the defendant of the effect of a no contest

plea. E. Cleveland v. Brown, 8th Dist. Cuyahoga No. 97878, 

.

Crim.R. 11(B)(2) provides, “[t]he plea of no contest is not an admission of

defendant’s guilt, but is an admission of the truth of the facts alleged in the

indictment, information, or complaint, and the plea or admission shall not be used

against the defendant in any subsequent civil or criminal proceeding[s].”

Accordingly, before accepting Byas’s no contest plea, the trial court was required to

advise Byas — either orally or in writing — of the effect of his plea, as set forth in

Crim.R. 11(B)(2). State v. Jones, 

, 

, 

 (“[F]or a no contest plea, a defendant must be informed that the plea of no

contest is not an admission of guilt but is an admission of the truth of the facts

alleged in the complaint, and that the plea or admission shall not be used against the

defendant in any subsequent civil or criminal proceeding.”).

              In the instant matter, the trial court completely failed to comply with

Crim.R. 11(C).    The record reflects that the trial court gave no explanation

whatsoever to Byas regarding the effect of his no contest plea.          During plea

discussions, Byas appeared to be under the impression that he would be pleading

guilty, rather than no contest: “I plead guilty, your Honor.” (Tr. 9.) The first time

a plea of no contest was mentioned was during a discussion between the trial court

and the prosecutor, during which the trial court confirmed that the case file had not

been “marked.” Although Byas previously expressed a desire to plead guilty, the trial
court told Byas to plead no contest when formally accepting Byas’s plea on the

record: “How do you plead? You’re going to plead no contest. Remember that.”

(Tr. 22.) The trial court did not advise Byas of the effect of his no contest plea —

either before or after instructing Byas to plead no contest.

              “Without any explanation of the effect of his no contest plea, [the

defendant’s] plea was not knowingly, voluntarily, and intelligently made.” Heard,

, 

, at ¶ 31. In this case, like Heard, the record reflects

that the trial court failed to provide any explanation of the effect of Byas’s no contest

plea. Furthermore, Byas appeared to be confused as to whether he was pleading

guilty or no contest, and Byas only pled no contest after the trial court instructed

him to do so when Byas was formally tendering his plea. (Tr. 22.) Because the trial

court completely failed to comply with Crim.R. 11(C), Byas was not required to

demonstrate that he was prejudiced by the trial court’s error. Dangler, 

, 

, 

; State v. Reyes, 8th Dist. Cuyahoga

No. 110126, 

.

              For all of the foregoing reasons, Byas’s second assignment of error is

sustained.   Because the trial court failed to provide any explanation to Byas

regarding the effect of his no contest plea, the trial court completely failed to comply

with Crim.R. 11(C). Without an explanation of the effect of his no contest plea,

Byas’s plea was not knowingly, voluntarily, and intelligently made. As a result,

Byas’s plea must be vacated.

               Byas’s second assignment of error is sustained.
                                  III. Conclusion

             After thoroughly reviewing the record, we find that Byas’s no contest

plea was not knowingly, voluntarily, and intelligently made. Accordingly, Byas’s no

contest plea must be vacated.

              This cause is vacated and remanded to the lower court for further

proceedings consistent with this opinion.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
LISA B. FORBES, J., CONCUR